“ A defendant to publication of defamation on his or her Facebook Page can be liable as a “ secondary “ publisher of those comments because of his or her participation.”

Angus Macinnis, Director of Dispute Resolution at Stevens Vuaran Lawyers, discusses the recent District Court of South Australia defamation case of Johnston v Aldridge [2018] SADC 68 where the Plaintiff won damages assessed at $100,000, including aggravated damages, after the Plaintiff argued the Defendant was liable for defamatory statements made by other Facebook users who commented on the Defendant’s original post.

To avoid social media liability, it’s likely that you DO have to read the comments

“Never read the comments” is often said to be one of the cardinal rules of the Internet – indeed, if you need reminding of the importance of the rule, the Internet will helpfully supply you with T-shirts and cross-stitch patterns so that you don’t forget.

However, whenever there is a rule, there will be exceptions which prove the rule. One important exception is that if a business allows comments on its website (or has a Facebook page which allows comments to be posted) it seems that someone will have to read the comments to identify (and if necessary, remove) comments. The reason for this is that even where the business is not the author, comments can give rise to legal liability for the business.

Case of defamatory Facebook comments

The point has been illustrated in a recent South Australian case involving a claim for defamation arising from Facebook posts. The plaintiff not only relied on what the defendant had posted on Facebook, but also relied on defamatory statements made by other Facebook users who commented on the defendant’s original post.

The plaintiff argued that the defendant was liable for the comments as a “secondary” publisher, because by making the original Facebook post, the defendant had “participated” in the publication of the comments by creating the occasion for the comments to be made.

The defendant argued that he had no control over the authors of the comments and that “in any event they were so numerous as to make it ‘impracticable’ for him to remove them”. As the printout of the comments ran to some 190 pages, the court did agree that the comments were “voluminous” but held that although “considerable inconvenience might have been involved”, the inconvenience was “not so great as to make it unrealistic or unreasonable” for the defendant to monitor the comments, particularly as the evidence showed that the defendant recognised that the original post might attract “inappropriate comments”. By making such a post, said the court, “the defendant must be taken to have accepted the responsibility to monitor [the comments] and remove those which were inappropriate or suffer the consequences irrespective of the inconvenience involved”.

The defendant also argued that deleting comments might have created a backlash against the defendant’s views. This argument received short shrift from the court, with the court explaining, “that it was politically inexpedient from [the defendant’s] point of view to delete the comments can be accepted, but political expediency on its own provides no defence to secondary publication.”

Application to businesses on Facebook

The same answer would be given to a business which decided that it was “commercially inexpedient” to delete posts made by customers on Facebook or a website in case that created a backlash against the business. (The underlying dispute between the plaintiff and the defendant had both commercial and political aspects, but the case would have been decided the same way had the dispute involved ordinary commercial statements).

Of course, the fact that businesses can be liable for statements posted by customers (or other people external to the business) on their Facebook pages is not new. In 2011, the Federal Court of Australia considered the issue of who had “published” Facebook and Twitter posts in the context of considering whether a company called Allergy Pathway had breached prior orders of the Court which prevented the company from making misleading statements.

Although the Facebook and Twitter posts had apparently been posted by customers of Allergy Pathway, the Federal Court found that because Allergy Pathway had knowledge of the posts, and also the ability to remove the posts, Allergy Pathway had “published” the posts (even if it had not authored them). To that extent, the recent South Australian case simply extends liability for publication from posts made by others (as considered in the Allergy Pathway case) to comments made by others as well.

Lessons for online publishing

The lesson in all of this is that laws which apply to publishers (which include not just the defamation or misleading and deceptive conduct examples discussed here, but also intellectual property laws and anti-discrimination laws) apply just as much on the Internet, and just as much on social media platforms, as they do to traditional publications.

If your business is using social media for promotion, then your business is in the business of publishing, and if your business does not know much about the law of publishing, you should make it your business to find out. Although liability for secondary publication can be avoided if a publisher “does not know, and could not with the exercise of reasonable diligence have known” of defamatory publication, the need for “reasonable diligence” means that ignorance is much more likely to be expensive than it is to be bliss.

Perhaps the last word in all of this belongs to Henri de Toulouse-Lautrec, who is reported to have said, “I paint things as they are. I don’t comment. I record.” Would sticking to painting, rather than posting on social media, be a good approach to managing liability? For the record, we regret that we must answer that question with a firm, “no comment”.

Angus Macinnis has a broad commercial practice with a focus on dispute resolution, and in particular, on employment and work health and safety law, and intellectual property law. He advises employers and employees on all aspects of employment law, from drafting contracts and employment policies, to dealing with employment related disputes, to dealing with employment and safety regulators.

He has a particular interest in the employment law aspects of social media use and has published in this area in publications including the Law Society Journal, The New Lawyer, and the Internet Law Bulletin, as well as providing regular contributions to AHRI’s HRM Online website. He is a regular speaker at conferences for MCLE providers including the Law Society of New South Wales and the University of New South Wales and also provides training to employer clients in areas including anti-discrimination law.

In the intellectual property area, Angus advises in relation to copyright and trade mark disputes, as well as “trade dress” and passing off disputes. Contact Angus at angus@stevensvuaranlawyers.com

Richard Ferrara, right, of New York, holds a sign and the rainbow flag along with others during a Dignity USA demonstration Saturday, April 12, 2008 in New York, NY. Dignity USA, a Catholic gay rights group, held the demonstration across the street from the United Nations complex ahead of Pope Benedict XVI’s upcoming visit to the U.S. next week. (AP Photo/Craig Ruttle)